[2] The case holding that a company's interference with the qualifications of an employee of the "chief class" constitutes unfair labor practices by "control and intervention in the organization and operation of a trade union", and the act of deducting the hours during which the employee attended the Central Committee for Trade Union and Labor Relations Adjustment from wages constitutes unfair labor practices of "disadvantageous treatment for trade union activities"

[3] The method of determining whether an employee of the company's "chiefd class" constitutes "employer or a person who acts on behalf of the employer at all times" under Article 2 subparagraph 4 (a) of the Trade Union and Labor Relations Adjustment Act

[2] The case holding that a company's interference with the qualification of an employee of "chief class" constitutes unfair labor practices by "control and intervention in the organization and operation of a trade union" and the act of deducting the hours during which the employee attended the Central Committee for Trade Union and Labor Relations Adjustment from wages constitutes unfair labor practices of "disadvantageous treatment for trade union activities"

[3] Whether an employee of the company's "chief grade" constitutes "employer or a person who acts on behalf of him/her at all times" under the proviso of Article 2 subparagraph 4 (a) of the Trade Union and Labor Relations Adjustment Act or "in order to secure the independence and independence of a trade union, it should be denied that a person who is at risk of undermining the autonomy of a trade union should participate in the trade union in accordance with the purport of Article 2 subparagraph 4 of the same Act to prevent the use of the union's fish union. Therefore, it is necessary to make a decision by the perspective that there is no concrete risk of infringing the autonomy of the trade union. In addition, this should be determined in light of the formal position and title, not based on the trade union, but based on the actual status of the company (business (business) and the actual duties and authority. An employee can freely form a trade union and join the trade union, and a trade union may independently determine the person who shall be excluded from the trade union. Therefore

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The following facts shall not be disputed between the parties, or may be recognized by comprehensively taking into account the respective descriptions in subparagraph 1-1-2 and the whole purport of pleadings:

A. The Plaintiff Company was established on April 2, 1997 and established on April 2, 1997 and changed the name of the Plaintiff Company to the Intervenor Trade Union, which is the Intervenor Trade Union, by integrating the existing (title omitted) trade union and the organization of the Plaintiff Company, and the existing Non-Party 1 Trade Union and the (title omitted) trade union were made a structural change to a branch office of the Intervenor Trade Union under the Intervenor Trade Union. The Intervenor Trade Union is a company-level trade union consisting of 1,000 members at the present 1,00 members.

B. On October 2, 2006, the Intervenor Labor Union (hereinafter “ Intervenor Labor Union”) demanded the Plaintiff Company to conduct collective bargaining on the ground of “the chief class employee” as the negotiating member, and the Plaintiff Company’s employee on the same day is not a “person who acts on behalf of the employer with respect to the matters pertaining to workers.” The Plaintiff Company and the Intervenor Labor Union presented a revised proposal to negotiate on October 23 of the same year, except in the negotiating member, on the ground that it constitutes “the person who acts on behalf of the employer with respect to the matters pertaining to workers.” However, the Plaintiff Company and the Intervenor Labor Union’s labor union did not narrow the difference in the qualifications for the negotiating member with respect to the employees of the chief

C. On October 25, 2006, the Plaintiff Company did not recognize paid hours guaranteed by the collective agreement and deducted 60,153 won for that time, on the ground that Nonparty 2, the chief of the Intervenor’s Trade Union and the Labor Relations Coordination Department, was absent from the workplace without the employer’s approval on September 27, 2006, at the time of paying wages.

D. On October 23, 2006, the Intervenor Labor Relations Commission filed an application for remedy with the Seoul Regional Labor Relations Commission on December 14, 2006, by asserting that ① the collective bargaining in the middle of October 23, 2006 constitutes unfair labor practices of refusing and neglecting collective bargaining, and ② interference with the qualification of the union members of the Plaintiff Company constitutes unfair labor practices of controlling and entering into the organization and operation of a trade union; ③ Nonparty 2’s deduction of hours from the wages attending the Central Labor Relations Commission constituted unfair labor practices due to disadvantageous treatment to trade union activities; and the said Regional Labor Relations Commission accepted the part among the application for remedy; ② On February 12, 2007, the Plaintiff Company rejected the part of the application; the Plaintiff Company’s failure to recognize the qualification of the union members in the course of collective bargaining, etc. on October 2, 2006, constitutes unfair labor practices of controlling and entering the trade union; and ③ the Plaintiff Company rejected the remainder of the order for remedy.

E. Accordingly, on February 27, 2007 and February 28, 2007, the Intervenor’s Trade Union and the Plaintiff Company filed an application for reexamination with the National Labor Relations Commission as 2007No61 and 62. On June 22, 2007, the National Labor Relations Commission revoked the part of the first inquiry court that judged it reasonable to deduct the wages of Nonparty 2 from the wages of the worker Nonparty 2 during the first inquiry court (section III). The Plaintiff Company recognized that the deduction of the wages of Nonparty 2 was an unfair labor practice, and issued a remedy order to pay 60,153 won in the amount of the wage deduction, and dismissed the rest of the application for reexamination (section II) by the Intervenor’s Trade Union and the Plaintiff Company’s request for reexamination (hereinafter, the Plaintiff Company’s interference with the qualifications of the members of the staff of the Trade Union and the Plaintiff Company’s request for reexamination constituted an unfair labor practice with respect to the organization and operation of the trade union, and Nonparty 2 determined that the deduction of wages from the Central Committee constituted an unfair labor practice.

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

In light of the characteristics of the Plaintiff Company’s work, the employee who is in full charge of personnel management is a person who represents the interests of the employer and cannot be a member of the Trade Union. Nevertheless, the Intervenor’s Trade Union’s employee recognized the employee as the employee in full charge and designated the employee in full charge as the negotiating member of the collective bargaining. As such, the Intervenor’s Trade Union’s employee cannot be deemed to be justifiable in itself. Therefore, it is difficult to establish an unfair labor practice by confirming that the Plaintiff Company cannot be a member in full charge of the Intervenor’s labor union. Moreover, it does not constitute an unfair labor practice to deduct wages from the portion that the Plaintiff Company

B. Facts of recognition

The following facts may be acknowledged in full view of each evidence mentioned above, Gap evidence 3, 4, Eul evidence 5-1, 2 (the same as Eul evidence 10-1, 2), Eul evidence 5-3 through 7, Gap evidence 13-1 through 4, Eul evidence 10-3 through 5, and Eul evidence 10-5, and the whole purport of testimony and arguments of non-party 3 and non-party 4:

(1) On March 22, 2006, the non-party 1 Co., Ltd. officially announced the sale of the company, and the non-party 1 Co., Ltd and the non-party 1 Co., Ltd. entered into the following collective agreements with the effective period from March 31, 2006 to March 30, 2008, which set the effective period from March 31, 2006 to March 31, 2008. On April 7, 2006, the non-party 1 Co.

[Main Matters of Collective Agreement]

Article 15 (Employment Security at Time of Extension of External Sales of Company)

(1) The Cooperative recognizes that such acts as division, merger, transfer of business, delegation of personnel rights or management responsibility, conversion of service, conversion of fees, lease conversion, etc. of a company are the rights of management or shareholders of the company.

(2) The company, as prescribed by the Act, promises to succeed to employment, succession to labor union and union union in whole or in part at the time of division, merger, or transfer of business in whole or in part, as well as to the effect that when a company delegates all or part of the company's personnel rights or business management responsibilities as it is, the employment, union and union shall agree with the company on such working conditions if the working conditions are modified disadvantageously.

(3) Where a company determines the conversion of services, conversion of fees, conversion of lease, etc. in connection with the business of an existing company and the operation of its store, it shall enter into a full consultation with the union.

(2) When entering into the collective agreement as above, Nonparty 1 Co., Ltd. and the Trade Union and Labor Union and Labor Union Co., Ltd. deleted the qualifications and restrictions on joining of the employees engaged in management and supervision as stipulated in Article 2 of the previous collective agreement concluded on Apr. 7, 2003 (the labor-management agreement concluded on Apr. 7, 2003, which concluded a supplementary agreement and concluded with Nonparty 5 and Nonparty 6, who are employees of the head of the department at the time, agreed to recognize the qualification of the union members only with Nonparty 7, who are employees of the head of the department at the time.).

[former Collective Agreement]

Article 2 (Qualification and Admission to Membership)

1.All members shall be free to join and withdraw from a cooperative, provided that they are not members:

(1) Persons engaged in management and supervision: Persons at least the head of the division or team.

(2) Non-regular workers, such as part-time workers, part-time money, contract workers, etc.

(3) Any other person who acts on behalf of an employer, a person in charge of business management, or workers of such business under the Trade Union and Labor Relations Adjustment Act.

(3) On September 12, 2006, the Fair Trade Commission approved the acquisition of the non-party 1 corporation (approval of the combination of enterprises) on the condition that the non-party 1 corporation was sold at some of the following regional stores in order to prevent the mination and monopoly of the non-party 1 corporation following the recent several years of new coaches.

- The subject of sale is one of two points out of five points, such as Anyang-gun's Papcoon village, New Zealand's head office, New Zealand's head office, 201 clock, 301 cateral cateral cateral cateral cateral cateral, one of four points, such as Sungnam-gun's Papcoon's cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cateral cl.

· The period of sale was fixed within six months from the date of the corrective order, but if necessary, it is possible to extend the period of sale for one year.

(4) On September 26, 2006, Plaintiff Company entered into a business transfer contract with Nonparty 1 Company and succeeded to Nonparty 1 Company’s collective agreement, etc.

(5) On October 2, 2006, the Intervenor’s Trade Union requested the Plaintiff Company to conduct collective bargaining to enter into an employment safety agreement with the head of the department as a negotiating member by asserting that the sale of a store, which is a condition approved by the Fair Trade Commission for the combination of enterprises, would significantly affect the union members’ employment and working conditions. On the same day, the Plaintiff Company, upon the Plaintiff Company’s request for collective bargaining on October 23, 2006, issued a correction to negotiate with the head of the department on the ground that the employee is “a person who acts for the employer with respect to the matters pertaining to workers.” However, the Plaintiff and the Intervenor’s Trade Union did not narrow the difference in the qualifications as the negotiating member, and thus, the collective bargaining was non-existent on October 23, 20

(6) Meanwhile, on September 27, 2006, the Intervenor’s Trade Union held a regular central committee (interconference meeting) on September 27, 2006 prior to the demand for negotiations. On October 25, 2006, the Plaintiff Company deducted KRW 60,153 of the wages corresponding to the attendance hours of the regular central committee, without recognizing paid hours guaranteed by the collective agreement, to Nonparty 2 (the chief class) of the Intervenor’s Trade Union and Labor Relations Division, who attended the regular central committee at the time of wage payment (the chief class) under Article 4 of the collective agreement on October 25, 2006.

(7) The Plaintiff Company is operated by each store as a human resources structure comprised of four levels of general staff (including contractual staff and regular staff), director, director, and director, and director. Generally, the number of employees in charge is assigned to 1-3 for each department or team, and the number of employees in charge is up to 30 if the number of employees in charge is more than 1-2, depending on the characteristics of the relevant department.

(c) Markets:

(1) According to Articles 5 and 11 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”), workers may freely organize or join a trade union. Specifically, the scope of union members of a trade union is determined in accordance with the trade union’s bylaws, and workers are entitled to membership by freely joining the trade union in accordance with the trade union’s bylaws (see Supreme Court Decision 2001Du10264, Dec. 26, 2003).

Therefore, the Plaintiff’s employee, who is not a member of the Intervenor’s Trade Union, allowed the Intervenor’s employee to join the position of the head of the department, and the employee was appointed as a negotiating member of the collective bargaining, claiming that the employee’s act of union itself is not legitimate, constitutes unfair labor practices due to the labor union’s independent decision authority on the scope of membership of the union and the right of workers concerning the membership of the union, and constitutes unfair labor practices through the control and intervention of the organization and operation of the union, and Nonparty 2, the employee of the head of the department, who is the employee of the Trade Union, deducted the hours during which he/she attended the Central Committee, constitutes unfair

(2) However, the Plaintiff’s aforementioned assertion appears to the purport that the employee of the department who is not in force of the collective agreement can not participate in collective bargaining because it was excluded from the scope of union members pursuant to the collective agreement. Therefore, we examine

In the collective agreement concluded on March 31, 2006, the Plaintiff deleted the provision that excludes workers with a position of director or higher from the scope of the association members. However, this provision is not based on the labor-management agreement that recognizes the qualification of a director-level employee as a member, but it is merely to discuss in the future and to temporarily delete the relevant provision if a new management enters the union. As such, the agreement that limits the scope of a director-level employee under the existing collective agreement is still valid, and as the collective agreement is not applicable to the employees with a position of director, the agreement that limits the scope of a director-level employee to the extent of the union members is still valid, and it cannot be recognized

As seen earlier, Article 2 of the collective agreement, which was concluded on April 7, 2003 between the non-party 1 corporation and the trade union, provides that the head of the division and the head of the team or higher shall not be members of the trade union. However, the collective agreement was concluded on March 31, 2006 and deleted the provision. However, if the collective agreement expressly provides that the scope of workers who are not members of the trade union should be excluded from the scope of workers who are not members of the trade union, the collective agreement shall be applicable to all members of the trade union who are members of the trade union as a party to the agreement including those who are not members of the trade union. As long as the provision was deleted, the collective agreement shall, in principle, be applied to all members of the trade union as members of the trade union as a party to the agreement, including those who are members of the trade union, and subsequently discussed about the qualifications of the members of the management staff members of the trade union as alleged by the plaintiff, and it shall not be deemed that the already deleted provision remains effective.

(3) The plaintiff's employee asserts that he is not qualified as a member since he falls under "the employer or a person who acts on behalf of the employer at all times" under Article 2 subparagraph 4 (a) of the Act.

Article 2 subparag. 2 of the Act provides that “an employer, a person in charge of business management, or a person who acts on behalf of an employer with respect to matters concerning workers in the business.” Here, “a person who acts on behalf of an employer with respect to matters concerning workers” refers to a person who is given certain authority and responsibility from an employer with respect to the determination of working conditions, such as workers’ personnel management, wages, welfare, labor management, or business orders or supervision (see Supreme Court Decision 88Nu6924, Nov. 14, 1989). In addition, Article 2 subparag. 4 of the Act provides that “an organization or an associated organization organized for the purpose of maintaining and improving working conditions and improving workers’ economic and social status on its own as the principal agent, or a person who acts on behalf of an employer or a person who acts on behalf of an employer at all times,” and the proviso and item (a) of the same Article provides that “an organization which is subject to restrictions on self-regulation of a trade union, as seen above, shall not be regarded as a trade union.”

As to whether an employee of the Plaintiff Company constitutes “the employer or a person who acts on behalf of the employer” or at all times, each of the above evidence and evidence, Gap evidence Nos. 8, 9, Gap evidence Nos. 14 through 16, Gap evidence Nos. 18 through 22, Gap evidence Nos. 23 and 14, Eul evidence Nos. 34 through 38, Eul evidence Nos. 1 and 2, Eul evidence Nos. 11 through 9, Eul evidence Nos. 11 through 15, and evidence Nos. 11 through 15, which are recognized by the head office of the Plaintiff Company’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s head office’s office’s head office’s head office’s head office’s office’s head office’s authority or head office’s head office’s head office’s head office’s head office’s head office’s head office’s authority.

Therefore, in the process of requesting collective bargaining on October 2, 2006 by the Intervenor Union, the Plaintiff Company did not recognize its membership on the ground that it constitutes “a person who acts on behalf of a business owner with respect to matters concerning workers,” and Nonparty 2’s participation in the regular central committee is a legitimate trade union activity of the union members within eight hours per half year recognized in the collective agreement, but it cannot be deemed reasonable to deduct the wages equivalent to the hours of participation in the regular central committee on the premise that Nonparty 2, the head of the department, is not qualified as union members

(4) The theory of lawsuit

The fact that the Plaintiff Company did not recognize the membership of the head of the department in the course of requesting collective bargaining on October 2, 2006 of the Intervenor Union is a control and intervention in the organization and operation of the trade union, and the deduction of wages against the non-party 2 constitutes an unfair labor practice as a disadvantageous treatment to the trade union activities. Therefore, the instant decision on reexamination to the same effect is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judge Jeong Ho-sung (Presiding Judge)